STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WALTCO ENTERPRISES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 80-1705T

)

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on December 4, 1980, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Mr. Walter L. Johnson

2296 Hanson Street

Fort Myers, Florida 33901

For Respondent: Charles G. Gardner, Esquire

Florida Department of Transportation Haydon Burns Building

Tallahassee, Florida 32301

By letter dated August 18, 1980, Walter L. Johnson requested a hearing on the denial of his application for a permit in the name of Waltco Leasing for a sign on SR 80 one mile west of I-75 in Lee County. The application was denied by the Department of Transportation (DOT), Respondent, on grounds the location of the sign was not properly zoned.

The facts here involved are not in dispute. Mr. Johnson testified in his own behalf, one witness was called by Respondent and two exhibits were admitted into evidence. After the hearing had been closed information was received indicating that the sign in question was erected before 1972. Inasmuch as Petitioner was not represented by an attorney the affidavit submitted on behalf of Mr. Johnson is attached to the record.

FINDINGS OF FACT

1. Following a routine inspection if outdoor advertising signs along SR 80 in Lee County numerous signs, including the sign here involved, were cited for not having permits.

   
   

2. Upon receipt of the notice of violations Petitioner applied for permits for the signs owned by him that were found without permits. Some of these

   permits were granted; however, the application for the sign on SR 80 one mile west of I-75 was denied.

   
   

3. The site on which this sign is located is zoned agricultural.

   
   

4. Petitioner purchased five signs in 1977 from Martel Signs. All of these signs advertise Petitioner's honey factory which is open for visits by tourists to whom merchandise is sold. The factory is located a sufficient distance from SR 80 that it cannot be seen from SR 80 and the signs are needed by petitioner to attract and direct customers to his place of business.

   
   

5. In an affidavit from the owner of the property on which the sign is located, submitted by Petitioner subsequent to the hearing, it is stated that a sign, presumably in the same location as Petitioner's sign, was erected on or before 1968.

   
   

6. Upon purchasing the signs from Martel petitioner obtained permits from Lee County (Exhibit 1) but was unaware of, and made no effort to comply with, the provisions of Chapter 479, Florida Statutes, requiring annual permits from DOT for all outdoor advertising signs.

   
   

7. Respondent's records do not show the sign in question was ever permitted; however, Respondent's records are very incomplete in this regard for the period prior to 1975.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   
   

9. Section 479.111, Florida Statutes, provides in pertinent part:

   
   

   Only the following signs are permitted within controlled positions of the inter- state and federal-aid primary systems:

   * * *

   (2) Signs in commercial and industrial zoned or commercial and industrial unzoned areas . . . .

   
   

10. Section 479.23, Florida Statutes, provides:

    
    

    All signs which are lawfully in existence or are lawfully erected and which do not conform to the provisions of this chapter shall not be required to be removed by the department until after the end of the fifth year after they have become nonconforming.

    
    

11. The affidavit submitted by Petitioner following the close of the hearing, even if accepted as evidence, is hearsay, and cannot form the basis for a finding of fact that the sign was actually erected prior to 1971, the date the Highway Beautification Act of 1965 was made applicable to Florida by the enactment of Section 479.111 above quoted. Section 120.58, Florida Statutes.

    
    

12. It is clear from the evidence presented by Petitioner that upon acquiring the sign here in issue he attempted to comply with the laws applicable

    to signs by proceeding to the county courthouse for a sign permit. At this hearing, Petitioner was not represented by an attorney.

    
    

13. It is also clear that Petitioner's sign is located in an area zoned agricultural and a new sign cannot be permitted in such a location. However, if Petitioner's sign was lawfully erected before 1971 it obtained grandfather status and may now be permitted. Walker v. Florida Department of Transportation, 366 So.2d 96 (Fla. 1st DCA 1979).

    
    

14. The burden is upon petitioner to prove, by a preponderance of the evidence, that the sign was lawfully erected and became nonconforming when the zoning requirements were imposed in 1971. This he has failed to do. In failing to sustain this burden of proof Petitioner has failed to establish his entitlement to a permit.

From the foregoing it is concluded that Petitioner failed to establish that the sign located along SR 80 one mile west of I-75 was lawfully erected prior to 1971 and enjoys grandfather status. However, evidence of this fact appears to be available. It is therefore

RECOMMENDED that Petitioner be given 60 days in which to present evidence satisfactory to Respondent, that this sign was erected prior to 1971 and that a permit was acquired for this sign. In the event Petitioner is unable to furnish such evidence it is recommended the application for a permit to erect an outdoor advertising sign along SR 80 one mile west of I-75 be denied.

ENTERED this 12th day of December, 1980, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Department of Administration

Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1980.

COPIES FURNISHED:

Mr. Walter L. Johnson Waltco Enterprises, Inc. 2296 Hanson Street

Fort Myers, Florida 33901

Charles G. Gardner, Esquire Florida Department of Transportation

Haydon Burns Building Tallahassee, Florida 32301

Mr. William D. Rose, Secretary Florida Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32301

Docket for Case No: 80-001705

Orders for Case No: 80-001705